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Saturday, March 26, 2016

Brean: War, Declare Yourself

Written by: Joseph Brean, National Post

The immediate aftermath of a terrorist attack seems an odd time for a civics lesson. But that is just what Prime Minister Justin Trudeau and his Foreign Affairs Minister, Stéphane Dion, seemed to offer in response to French Prime Minister Manuel Valls’ announcement that his country is at war with ISIL, whose terrorists targeted Brussels this week after Paris last year.

Speak for yourself, said the Canadians. Canadian warplanes may have been bombing ISIL targets until last month, and Canadian special forces are indeed in the northern Iraq war zone today, but what they are engaged in is a “fight,” according to Canada’s government, not a war.

“A war is something that can be won by one side or the other and there is no path for ISIL to actually win against the West,” Trudeau said. “They want to destabilize, they want to strike fear. They need to be stamped out.”
THE CANADIAN PRESS/The National Archives of Canada, Claude P. DettloffThe photo "Wait for me, Daddy" shows Private Jack Bernard, B.C. Regiment (Duke of Connaught's Own Rifles) saying goodbye to his five-year-old son Warren Bernard as he leaves for the Second World War in New Westminster, B.C., 1940.

“If you use the terminology ‘war,’ in international law it will mean two armies with respecting rules and it’s not the case at all,” added Dion. “You have terrorist groups that respect nothing. So we prefer to say that it’s a fight.”

They are technically correct, says Jack Granatstein, a military historian and fellow of the Canadian Global Affairs Institute, but the curiosity of their comments reflects a major historical trend, away from wars that begin with legal agreements between sovereign states, toward the modern scenario of military conflict among non-state actors like terrorist groups, insurgencies, and subnational ethnic groups.

“I don’t think people do it anymore,” Granatstein said of the formal declaration of war, pointing to recent military conflicts such as Russia’s annexation of Crimea.

In Canada, he notes, only one war has ever been formally declared, the Second World War. More commonly, war has been justified either by Canada’s colonial duties, or by a simple vote of Parliament to send troops somewhere.

In Canada’s first military action, against the Red River Rebellion a few years after Confederation, troops were dispatched by a vote of Parliament, just as they were in the North-West Rebellion of 1885.

Canada went to the Boer War without a formal declaration, and joined the Great War in 1914 as a colony of Britain. It was not until war broke out against the German Reich that Canada passed a throne speech and had King George VI formally declare war on its behalf, first against Germany, later against Finland, Hungary, Romania and Japan.

STF/AFP/Getty ImagesCanadian soldiers land on Courseulles beach in Normandy, 06 June 1944 as Allied forces storm the Normandy beaches on D-Day.

“To my mind that suggests what a colonial remnant this country is, that we couldn’t even go to war on our own,” said Granatstein. “That’s our last declaration of war in the formal sense.”

But of course Canada has fought in many wars, no less real for having never been declared. Korea, for example, was famously described by U.S. President Harry S. Truman as a “police action.” Afghanistan was always a security mission, not a war.

One of the best illustrations of the legalities of declaring war in Canada, and how it relates to the Charter and international law, came in 2003, when Canada was caught by the dilemma of Iraq and whether to join the looming American invasion.
Lt. H.G. Aikman/DND/Library and Archives Canada/PA-129128Ranville France, 18 July 1944 -- Personnel of the 8th Canadian Infantry Brigade taking part in advance around Caen.

Several people brought legal action in an attempt to block a Canadian declaration of war, which in the end was made moot by Jean Chrétien’s decision not to join. In court, Canada argued that any decision to declare war “arises from the prerogative powers of the Crown and is not justiciable in any event,” according to one ruling. In siding with Canada and dismissing the action, a judge found that declaring war, like signing a treaty, is a matter of “high policy,” quite different from the kind of government action that can be rightly reviewed by a court, such as refusal of a passport.

“Where matters of high policy are concerned, public policy and public interest considerations far outweigh the rights of individuals or their legitimate expectations. In my view, apart from Charter claims, these decisions are not judicially reviewable.”

War is as old as society, and the question of when it formally begins has changed in lockstep with history. One constant theme has been a sense of chivalry and honour, in which sneak attacks are frowned on, and noble victory is possible only by declaring one’s intentions and fighting in the clear light of day.

Homer’s epic poetry, for example, is at root a series of tales about how the heroic ideal is expressed in war. Heraclitus, the ancient Greek philosopher, thought the true nature of the universe is war and strife, and that justice arose from the equilibrium in this turmoil. “War is father and kin of all,” he wrote, an idea that simmered in the background of philosophy and showed itself centuries later in Friedrich Nietzsche’s famous quip: “Out of life’s school of war: Whatever does not destroy me, makes me stronger.”

The themes are timeless. The Peloponnesian War, which started without a formal declaration, influenced Plato’s low opinion of Athenian democracy, just as the English Civil War inspired Thomas Hobbes’ dismal view of the state of nature — “a war of all against all” — and the need for a strong social contract under a powerful state.

Saint Augustine was one of the first thinkers to write about the idea of a just war, partly in response to the sacking of Rome by Alaric the Visigoth. His ideas guided Christianity as it came to dominate Europe, and the Christian reluctance to fight gave way to the pressures of statecraft and crusade. From his writings grew the legal doctrine of jus ad bellum, or when it is right to go to war, with typical criteria including a formal declaration by a legitimate authority, for a just cause, as a last resort, with a reasonable prospect of success.
Ken Bell / Canada. Dept. of National Defence / Library and Archives Canada / PA-162651Canadian infantry walking through rubble

Modern versions of this thinking have focused on war as a response to aggression, which gave rise to the notion of declaring war by ultimatum — basically, retreat or suffer the consequences. But formal declarations were more the exception than the rule, with some historical analyses suggesting only about 10 per cent of wars in 18th century Europe were formally declared.

The Hague Conventions aimed to change that when they came into force in 1910.

“The Contracting Powers recognize that hostilities between themselves must not commence without previous and explicit warning, in the form either of a reasoned declaration of war or of an ultimatum with conditional declaration of war,” they read. “The existence of a state of war must be notified to the neutral Powers without delay, and shall not take effect in regard to them until after the receipt of a notification, which may, however, be given by telegraph.”

In the decades since, however, as the Cold War gave way to the War on Terror, the old formalities looked ever more archaic, such that Canada today is in the strange position of fighting a fight while its allies wage a war.